ABA Annual Meeting

ABA House votes to oppose laws that ban transgender student-athletes

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Juniper Eastwood, left, ran on her university’s women’s cross country team after her transition. Photo by Rachel Leathe/Bozeman Daily Chronicle via AP, file.

Diana Katherine Flynn told the House of Delegates in August they could help transgender youth avoid significant harm if they opposed legislation prohibiting their participation in school sports.

“We’re dealing with one of the most vulnerable groups in the country in trans youth,” said Flynn, who was a special advisor to the Commission on Sexual Orientation and Gender Identity at the time. “They often are bullied, they suffer depression, they are humiliated in certain contexts. Many of them have found a way to belong in school activities like sports.

“When you have a situation where a government—for example, a state government—steps in and says to a trans student: ‘Your identity doesn’t count, you can no longer participate with your friends and your peers in school activities, you don’t deserve to do that,’ that is an enormous creation of stigma, an enormous blow to a trans student.”

The House took a stand on the issue, overwhelmingly approving Resolution 609 at the ABA Hybrid Annual Meeting. The SOGI-sponsored measure opposes all legislation, regulations or policies that prohibit transgender students from participating in athletics in line with their gender identity.

Trans youth as a target

More than half of the states in the country have introduced bills that aim to exclude transgender youth from participating in sports, according to SOGI’s data.

Several states, including Alabama, Arkansas, Florida, Mississippi, Montana, Tennessee and West Virginia have passed laws in recent months that prohibit transgender athletes’ participation, while South Dakota Gov. Kristi Noem, a Republican, issued an executive order to achieve a similar ban.

These efforts have also surfaced on the federal level. In March, Sen. Tommy Tuberville, a Republican from Alabama, introduced an amendment to COVID-19 relief legislation that would have denied schools federal Title IX funds if they allowed students designated as male at birth to participate in sports programs designated for female athletes. The measure was defeated in the U.S. Senate by a vote of 50 to 49.

“That’s a road I think we as a society do not want to go down, and that is a road that should be opposed by the ABA,” Flynn told House members.

SOGI contends in the report accompanying the resolution that states’ recent legislation is inconsistent with existing law, as federal courts have repeatedly held that individuals who are transgender are protected against discrimination on the basis of sex. In June 2020, the U.S. Supreme Court said in Bostock v. Clayton County, Georgia, that an employer who fires an individual for being gay or transgender violates Title VII of the Civil Rights Act of 1964.

Legislation that seeks to exclude transgender students from participating in school sports is also opposed by the general public as well as professional athletes, businesses and major medical associations. In December, the American Academy of Pediatrics, American Medical Association, American Psychiatric Association and 10 other health care organizations filed an amicus brief opposing an Idaho law prohibiting transgender student athletes. They argued that “barring transgender girls and women from participating in school sports consistent with their gender identity frustrates the treatment of gender dysphoria by preventing transgender girls and women from living openly in accordance with their true gender.”

A federal judge several months earlier had issued a preliminary injunction that prevents enforcement of the Idaho law—the first of its kind in the nation—while the challenge against it proceeds through the courts.

‘The right thing to do’

Victor Marquez, who was then chair of SOGI, spoke in favor of Resolution 609, saying it had garnered wide support within the ABA, including from the Section of Family Law.

“This is the right thing to do today,” Marquez said. “This is about inclusion, diversity and equity for these young children and youth who simply want to be who they are. They want to be able to live a life where they can play sports.”

Resolution 609 is consistent with the ABA’s commitment to enacting policy that supports LGBTQ+ individuals. At last year’s annual meeting, the House adopted a resolution opposing all legislation, regulations and policies that discriminate against transgender or nonbinary individuals on the basis of gender identity or that impose barriers to obtaining or providing medical care to affirm an individual’s gender identity.

At the 2019 midyear meeting, it adopted two other resolutions opposing legal discrimination on the basis of sexual orientation or gender identity.

This story was originally published in the October/November 2021 issue of the ABA Journal under the headline: “A Sporting Chance.”

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